Citation Nr: 0614976
Decision Date: 05/23/06 Archive Date: 06/02/06
DOCKET NO. 04-00 019A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a low
back disorder.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
bilateral knee pain.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Tanya A. Smith, Counsel
INTRODUCTION
The veteran had active service from April 1970 to June 1971
and June 1971 to October 1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boise, Idaho.
The Board notes that the February 2005 Supplemental Statement
of the Case (SSOC) shows that the RO decided that new and
material evidence had been submitted and therefore reopened
the previously disallowed claim for service connection for a
low back disorder but denied the claim on the merits. The
Board notes that in Barnett v. Brown, 8 Vet. App. 1 (1995),
affirmed 83 F.3d 1380 (Fed. Cir. 1996), it was determined
that the statutory scheme in 38 U.S.C.A. §§ 5108 and 7104
establishes a legal duty for the Board to consider new and
material issues regardless of the RO's actions. As such, the
Board must make its own determination as to whether new and
material evidence has been presented to reopen the back
claim.
In March 2006, the Board received additional evidence from
the veteran accompanied by a waiver of the RO's right to
initial consideration of this evidence. 38 C.F.R. §§ 19.9,
20.1304(c) (2005). Accordingly, the Board will consider this
evidence in the first instance in conjunction with the issues
on appeal.
FINDINGS OF FACT
1. The veteran has been notified of the evidence necessary
to substantiate his
claims, and all relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. By an unappealed rating decision dated in April 1999, the
RO declined to reopen a previously disallowed claim of
entitlement to service connection for a low back disorder.
3. Evidence submitted subsequent to the April 1999 RO rating
decision when considered with the previous evidence of record
relates to an unestablished fact necessary to substantiate
the claim for service connection of a low back disorder.
4. The medical evidence of record shows that no low back
disorder manifested by degenerative disc and joint disease
was identified in service and that joint disease of the low
back is not shown to have manifested to a compensable degree
within the statutory one-year presumptive period following
the veteran's discharge from service; there is also no
competent medical evidence of record that causally links the
currently diagnosed low back disorder to an incident of the
veteran's military service.
5. By an unappealed rating decision dated in September 1996,
the RO declined to reopen a previously disallowed claim of
entitlement to service connection for bilateral knee pain.
6. Evidence submitted subsequent to the September 1996 RO
decision is cumulative or redundant of the evidence of record
at the time of the last prior final denial of the claim and
does not relate to an unestablished fact necessary to
substantiate the claim or raise a reasonable possibility of
substantiating the claim for service connection for bilateral
knee pain.
CONCLUSIONS OF LAW
1. The April 1999 RO rating decision is final. 38 U.S.C.A.
§ 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103
(1998).
2. New and material evidence has been submitted, and the
claim for entitlement to
service connection for a low back disorder is reopened. 38
U.S.C.A. §§ 5103, 5103A, 5108 (West 2002 & Supp. 2005); 38
C.F.R. §§ 3.156, 3.159 (2005).
3. A low back disorder was not incurred in or aggravated
during active service; nor may any currently diagnosed low
back disorder subject to presumptive service connection be
presumed to have been incurred therein. 38 U.S.C.A. §§ 1110,
1112, 1113, 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.159, 3.303, 3.307, 3.309 (2005).
4. The September 1996 RO rating decision is final. 38
U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302,
20.1103 (1995).
5. New and material evidence has not been submitted, and the
claim of entitlement to service connection for bilateral knee
pain is not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West
2002 & Supp. 2005); 38 C.F.R. §§ 3.156, 3.159 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations
of VA with respect to the duty to assist and includes an
enhanced duty to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005); 38
C.F.R. § 3.159 (2005). VA is required to provide the
claimant with notice of what information or evidence is to be
provided by the Secretary and what information or evidence is
to be provided by the claimant with respect to the
information and evidence necessary to substantiate the claim
for VA benefits. Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002). While the VCAA does not serve as a basis to
reopen a claim (unless new and material evidence is
presented), the law does include the enhanced duty to notify.
In regard to VA's enhanced duty to notify under the VCAA, the
Board notes that in correspondence dated in May 2002, the RO
advised the veteran of VA's duties under the VCAA and the
delegation of responsibility between VA and the veteran in
procuring the evidence relevant to the claims, including
which portion of the information and evidence was to be
provided by the veteran and which portion VA would attempt to
obtain on behalf of the veteran. Quartuccio, 16 Vet. App. at
187. The RO advised the veteran of the information and
evidence necessary to reopen his previously disallowed claims
for service connection of a low back disorder and bilateral
knee pain as well as what the evidence must show to establish
service connected compensation benefits. In addition, the
Board notes that in the instant claims to reopen received by
the RO in April 2002, the veteran reported that he understood
that he needed a medical opinion that linked his claimed
disabilities to his military service.
The Board acknowledges that the May 2002 VCAA notice
contained no specific request for the veteran to provide any
evidence in the veteran's possession that pertained to the
claims or something to the effect that the veteran give VA
everything he had that pertained to his claims. 38 C.F.R.
§ 3.159(b)(1) (2005). A complying notice, however, need not
necessarily use the exact language of the regulation so long
as that notice properly conveys to a claimant the essence of
the regulation. The RO asked the veteran for all the
information and evidence necessary to reopen his claims-that
is, evidence of the type that should be considered by VA in
assessing his claims. A generalized request for any other
evidence pertaining to the claims would have been superfluous
and unlikely to lead to the submission of additional
pertinent evidence. Therefore, it can be concluded, based on
the particular facts and circumstances of the case, the
omission of the request for "any evidence in the claimant's
possession that pertains to the claim" in the notice did not
harm the veteran, and it would be legally proper to render a
decision in the case without further notice under the
regulation.
During the course of this appeal, the United States Court of
Appeals for Veterans Claims (Court) issued a decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim, including
the degree of disability and the effective date of an award.
In the instant appeal, the veteran was not provided with
notice of the type of evidence necessary to establish a
disability rating or effective date for the disabilities on
appeal. To the extent that any concerns raised in
Dingess/Hartman are present, the Board finds no prejudice to
the veteran in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(providing that where the Board addresses a question that has
not been addressed by the agency of original jurisdiction,
the Board must consider whether the veteran has been
prejudiced thereby). In this regard, the Board concludes
below that the low back claim should be reopened, so there is
no prejudice. As for the knee claim, since this claim is not
found to be reopened by way of the submission of new and
material evidence, no disability rating or effective date
will be assigned, so there can be no possibility of any
prejudice to the veteran.
In further regard to VA's duty to notify, the Board notes
that the RO provided the veteran with a copy of the July 2002
rating decision, January 2004 Statement of the Case (SOC),
February 2005 SSOC, and December 2005 SSOC, which included a
discussion of the facts of the claims, notification of the
bases of the decisions, and a summary of the evidence used to
reach the decisions. The SOC and SSOCs provided the veteran
with notice of all the laws and regulations pertinent to his
claims, including the law and implementing regulations of the
VCAA. Therefore, the Board concludes that there is no
outstanding duty to inform the veteran that any additional
information or evidence is needed. Quartuccio, 16 Vet. App.
at 187.
The Board finds that the requirements under the law as
pertains to new and material evidence claims have been met.
II. New and Material Evidence
A claimant may reopen a finally adjudicated claim by
submitting new and material evidence. 38 U.S.C.A. § 5108
(West 2002); 38 C.F.R. § 3.156(a) (2005). New evidence means
existing evidence not previously submitted to agency
decisionmakers. 38 C.F.R. § 3.156(a) (2005). Material
evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim. Id.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. Id.
When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In order
for evidence to be sufficient to reopen a previously
disallowed claim, it must be both new and material. If the
evidence is new, but not material, the inquiry ends and the
claim cannot be reopened. Smith v. West, 12 Vet. App. 312,
314 (1999). If it is determined that new and material
evidence has been submitted, the claim must be reopened. VA
may then proceed to evaluate the merits of the claim on the
basis of all evidence of record, but only after ensuring that
the duty to assist the veteran in developing the facts
necessary for his claim has been satisfied.
A review of the claims file reveals that the veteran's
original claim for service connection of bilateral knee pain
and low back pain was denied by the RO in a June 1996 rating
decision. The RO decided that the veteran's complaint of
bilateral knee pain in service was minimal and considered
acute and transitory with no evidence of chronic knee
problems in service. The RO decided that the low back claim
was not well-grounded. In a June 1996 letter, the RO advised
the veteran of the denial of service connection and advised
him of his procedural and appellate rights. The veteran,
however, did not appeal the decision and it became final in
June 1997. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§
3.104, 20.302, 20.1103 (1995).
In a September 1996 rating decision, the RO declined to
reopen the previously disallowed knee claim on the basis that
the newly submitted evidence did not show the onset of a
chronic disability while on active duty that continued to the
present time. The RO reopened the back claim but denied the
claim on the merits. In a September 1996 letter, the RO
advised the veteran of the denial of service connection and
enclosed VA Form 4107, but he did not appeal the decision and
it became final in September 1997. Id. In an April 1999
rating decision, the RO declined to reopen the back claim.
In an April 1999 letter, the RO advised the veteran of the
denial and enclosed VA Form 4107. The notice of decision
letter and rating decision were returned to the RO, but the
Board presumes that they were re-mailed to the new address
the Post Office provided. In April 2002, the RO received the
instant claim to reopen.
Low Back Disorder
Evidence associated with the claims file prior to the RO's
last final denial of the claim in April 1999 follows.
The service medical records showed no complaints or findings
referable to a low back disorder.
VA treatment records showed that the veteran was hospitalized
in November 1995. The discharge summary showed that the
veteran reported that in 1971, he had bilateral knee problems
secondary to an accidental fall, which led to low back
problems. The examiner noted that x-rays of the spine were
unremarkable. Thereafter, a March 1996 magnetic resonance
imaging (MRI) of the spine revealed slight L4-L5 and L5-S1
bilateral facet disease and slight L4-L5 left foraminal disc
protusion absent evidence of root sheath or thecal sac
impingement.
In two VA Form 21-4142s received in June 1996, the veteran
reported that he was treated for low back pain from November
1974 to January 1975 at Downey Hospital and from February
1975 to May 1982 while at the Idaho State Corrections. In a
June 1996 statement, the veteran maintained that he had
received chiropractic treatment for his back since May 1982.
VA treatment records included a July 1996 record that showed
that the veteran reported a history of chronic low back pain
since 1972, when he fell off a tank.
Records from the Social Security Administration (SSA) showed
that the veteran reported on an inability to work beginning
June 23, 1997, on account of back and hip injuries. The SSA,
however, found the veteran disabled due to depression because
of his hypothyroidism in a decision rendered in September
1998.
Evidence associated with the claims file after the last RO
final denial in April 1999 follows.
In several statements of record that included those dated in
April 2002, January 2004, May 2005, June 2005, November 2005,
and January 2006, as well as testimony presented in July 2005
at the RO, the veteran reiterated that he sustained an injury
to his back when he fell from a tank during service.
A record from Bear Lake Memorial Hospital noted that the
veteran was admitted to the hospital for a fractured left
clavicle. The record detailed charges due as of May 29,
1977.
VA treatment records dated from November 1984 to January 1985
noted no complaints or treatment for low back pain.
Treatment records dated from January 1986 to November 1990
showed that in June 1990, the veteran reported that he
sustained a back injury in 1976 and that he had pain. The
examiner provided an assessment of chronic low back pain. A
November 1990 record noted that the veteran indicated that he
had a long history of back pain secondary to a motor vehicle
accident in 1976. Current x-rays revealed mild degenerative
joint disease of the lumbosacral spine.
Records from Dr. W. dated from February 1997 to July 1997
showed beginning in June 1997, treatment for low back pain
following an incident in which the veteran was repairing a
water heater when he felt pain (disc slip) in his back. Dr.
R.B. provided an impression of acute lower and mid back
strain. In a September 1997 letter, the Idaho State
Insurance Fund reported that a determination had been made
that the veteran was not eligible to receive benefits under
Idaho's Workers Compensation because the evidence failed to
substantiate that his "hip/back" condition resulted from an
accident (June 23, 1997) that arose out of and in the course
of his employment.
A July 2001 Community Care record showed that the veteran
presented at the center with complaints of low back pain
following an incident in which he was engaged in bending and
pulling the prior day.
In a June 2002 letter, D.F., DC reported that he treated the
veteran for chronic back sprains/strains and vertebral
subluxations at the L4-L5 level. D.F. indicated that the
veteran had advised him that this condition was a result of
injuries he sustained after falling from the top of a tank in
service in 1972. D.F. maintained that the veteran was
incarcerated from 1976 to 1982, and therefore, he was not
able to seek appropriate treatment during that time. D.F.
noted that the veteran received treatment from his clinic
from May to October 1982 and from June to October 1990.
VA treatment records dated from January 1995 to December 2004
included duplicates and additional records that showed that
the veteran continued to be followed for low back pain.
Additionally, a September 2002 electromyograph consult noted
that there was electrodiagnostic evidence of a chronic left
multilevel radiculopathy. An October 2002 MRI report
indicated that the veteran's low back was currently
manifested by the following: interval development of
moderate central spinal canal stenosis at L4-5, due to a new
disc bulge at this level which was superimposed on mild
congenital spinal canal narrowing due to congenitally short
pedicles; mild disc bulge at L3-L4 with mild congenital
spinal canal stenosis; mild bilateral foraminal narrowing at
L4-L5; and multi-level mild facet arthropathy.
In a statement, F.J. reported that when the veteran was
released from service in 1974, he complained of back pain
that originated from a fall in service. In statements dated
in March 2005, E.W. reported that he knew the veteran prior
to his entry into service, and he recalled that the veteran
did not have back problems. E.W. maintained that when the
veteran returned from service in 1974, the veteran indicated
that he injured his back from a fall from a tank. In a March
2005 statement, J.S. reported that he became aware of the
veteran's back problems in 1975. A March 2005 statement
showed that D.B. became aware of the veteran's problems in
1974.
In a July 2004 progress note, D.B., PA-C, reported that the
veteran had central canal stenosis and that Mr. R. [local
service representative] apparently had supporting
documentation that the veteran hurt his back in service.
D.B. then noted that "[a]nything [was] possible" and that
the veteran's "[c]entral canal stenosis could possibly be
related to military injury."
The December 2004 VA examination report shows that the
examiner reviewed the claims file and discussed pertinent
records contained therein, including the description of the
fall from the tank and clinical findings and complaints at
that time. The examiner noted that in reviewing the
veteran's records, the first complaint of low back pain
occurred in mid-1990, and at that time, the veteran indicated
that he had had low back pain since an automobile accident in
1976. The examiner added that the accident was apparently
relatively severe in that the veteran sustained a fracture of
his clavicle. The examiner discussed the October 2002 MRI
findings. The examiner opined that the degenerative disc
disease and facet arthropathy in the veteran's lumbar spine
was less likely as not caused by or the result of the fall
from the tank in 1972. The examiner explained that there was
no documentation in the veteran's medical records that the
veteran complained of low back pain or was treated for low
back pain at any time during his military service.
In a March 2005 report, H.W., DC discussed the circumstances
surrounding the tank fall as reported by the veteran. H.W.
reported on the "1977" motor vehicle accident and added
that this incident produced a slight pathological aggravation
of the pre-existing back pain. H.W. discussed the February
1996 MRI findings, an October 2002 nerve conduction study,
and a September 2004 VA treatment record. H.W. concluded
that the veteran "continue[d] to complain of low back pain
and bilateral leg pain as a result of the injury sustained in
the military."
Lastly, records from the SSA, duplicate service medical
records, service personnel records, and Internet medical
articles on sciatica and back injuries, were also associated
with the claims file.
The Board finds that of the evidence submitted after the
April 1999 RO denial,
D.F.'s June 2002 letter, D.B.'s July 2004 progress note, the
December 2004 VA examination report, and H.W.'s March 2005
report, collectively constitute new and material evidence.
When considered with the previous evidence of record, this
evidence relates to the unestablished fact necessary to
substantiate the claim as to whether any currently diagnosed
low back disorder is causally related to an incident of the
veteran's military service. Accordingly, having determined
that new and material evidence has been submitted, the claim
is reopened and the Board will proceed to evaluate the merits
of the claim on the basis of all evidence of record after
ensuring that the duty to assist the veteran has been
satisfied.
Bilateral Knee Pain
Evidence associated with the claims file prior to the RO's
last final denial of the claim in September 1996 included as
follows.
The service medical records showed that on September 17,
1972, the veteran fell from a Sheridan tank on his left
"side." The examiner reported that the veteran complained
of pain and swelling in his left knee. It was also noted
that the veteran had a history of recurrent swelling of the
left knee. A September 18, 1972 record entry noted that an
x-ray of the left knee was within normal limits. The veteran
also now complained of pain in both knees. A September 29,
1972 record entry showed that a physical examination revealed
bruises on both knees. An October 4, 1972 record entry
showed that the veteran continued to complain of right knee
pain from falling off the tank. The examiner reported that
the physical examination revealed no apparent physical
damage. The examiner noted an impression of muscle strain.
No further complaints were documented in the service medical
records, including the separation physical examination report
dated in August 1974.
As reported above in the evidence portion on the low back
issue, the November 1995 discharge summary showed that the
veteran reported on bilateral knee problems present since
service. A physical examination revealed no clubbing,
cyanosis, or edema in the extremities. The examiner noted
that x-rays of the knees were unremarkable.
VA treatment records dated from November 1995 to March 1996
included a November 1995 radiograph report that noted that
the veteran's knees were normal, absent any evidence of
fracture, dislocation, effusion, or significant arthritic
changes.
Evidence associated with the claims file after the last RO
final denial in September 1996 included as follows.
In several statements of record that included those dated in
April 2002, January 2004, May 2005, June 2005, November 2005,
and January 2006, as well as testimony presented in July 2005
at the RO, the veteran reiterated that he sustained injuries
to his knees from the fall from the tank. Statements from
F.J., E.W., J.S., and D.B. reflected that the veteran
sustained knee injuries during service and that he complained
of knee pain after service.
Records from the SSA, H.W.'s March 2005 report, and VA
treatment records dated from November 1984 to December 2004,
showed no clinical findings of a bilateral knee disorder.
The December 2004 VA examination report showed that on
physical examination, the veteran's range of motion of the
knees was reported as normal.
The Board finds that none of the evidence submitted after the
September 1996 RO denial constitutes new and material
evidence. The evidence is cumulative and redundant of
evidence of record at the time of the last final RO denial of
the claim that showed that the veteran sustained an injury to
his left knee and had complaints of bilateral knee pain
during service. The evidence does not relate to the
unestablished facts necessary to substantiate the claim as to
whether a current bilateral knee disability exists and
whether a current bilateral knee disability is related to an
incident of the veteran's military service. As such, the
newly submitted evidence does not raise a reasonable
possibility of substantiating the claim for service
connection of bilateral knee pain. Accordingly, having
determined that new and material evidence has not been
submitted, the claim is not reopened.
III. Service Connection
After further review of the evidence, the Board finds that
the RO complied with the VCAA. The Board incorporates by
reference the previous discussion on the RO's compliance with
the VCAA. As noted earlier, the RO reopened the veteran's
low back claim and denied the claim on the merits. The
veteran was provided with notice of VA's statutory
obligations under the VCAA, including the delegation of
responsibility in procuring the evidence necessary to
substantiate the claim, and he was advised of the elements
required to establish service connection for a claimed
disability. As for any Dingess/Hartman concerns, since the
Board concludes below that the preponderance of the evidence
is against the veteran's claim for service connection, any
questions as to the appropriate disability rating or
effective date to be assigned are rendered moot. In regard
to the Board's duty to assist, all VA and private treatment
records identified by the veteran either have been obtained
or have been reported as not available to include on account
of the physician's death. The RO afforded the veteran a VA
examination in December 2004 and obtained a medical opinion
on the etiology of the claimed low back disorder. The
veteran has not made the RO or the Board aware of any other
evidence relevant to his appeal that needs to be obtained.
For the foregoing reasons, the Board finds that VA has
fulfilled its duties to notify and assist the veteran in
substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West
2002 & Supp. 2005); 38 C.F.R. § 3.159 (2005).
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury suffered or disease in active military
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§ 3.303(a) (2005). Service incurrence will be presumed for
certain chronic diseases, including arthritis, if manifested
to a compensable degree within one year following separation
from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West
2002); 38 C.F.R. §§ 3.307, 3.309 (2005). This presumption is
rebuttable by affirmative evidence to the contrary. Id.
The medical evidence shows that the veteran has a current low
back disorder manifested by degenerative disc disease and
degenerative joint disease. The service medical records and
VA treatment records, however, show that no low back disorder
was identified in service, and there is no medical evidence
that shows that degenerative joint disease of the low back
manifested to a compensable degree within the statutory one-
year presumptive period following the veteran's discharge
from service.
Notwithstanding the above, service connection may also be
granted for disability shown after service, when all of the
evidence, including that pertinent to service, shows that it
was incurred in service. 38 C.F.R. § 3.303(d) (2005). There
are several medical statements of record that address whether
the current low back disorder is related to the veteran's
military service. The Board must account for the evidence it
finds persuasive or unpersuasive and provide reasons for
rejecting material evidence favorable to the claim. See
Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).
The veteran has offered D.F.'s June 2002 letter, D.B.'s July
2004 progress note, and H.W.'s March 2005 report as proof of
in-service incurrence of his current low back disorder. D.F.
and H.W. only reiterate a history of injury and an etiology
of the claimed low back disorder as provided by the veteran,
and therefore, their statements do not constitute a medical
nexus that links the current low back disorder to the
veteran's military service. A bare transcription of a lay
history, unenhanced by additional comment by the transcriber,
is not transformed into competent medical evidence merely
because the transcriber is a health care professional.
LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As for the
July 2004 progress note, D.B.'s opinion was based on the
premise that there was supporting documentation that the
veteran hurt his back in service. This premise is not
supported by the service medical records, and a medical
opinion premised upon an unsubstantiated account is of no
probative value and does not serve to verify the occurrence
described. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).
Moreover, D.B.'s opinion is speculative. A medical opinion
based on speculation, without supporting clinical data or
other rationale, does not provide the required degree of
medical certainty. Bloom v. West, 12 Vet. App. 185, 187
(1999). Thus, D.B.'s opinion does not constitute competent
medical evidence of a link between the veteran's current low
back disorder and his service. Lastly, the December 2004 VA
examiner was unable to find a causal relationship between the
low back disorder and the veteran's service.
As for the veteran's opinion on the etiology of his low back
disorder (and the observations of those who provided
statements), where the determinative issue involves medical
causation, competent medical evidence is required. Grottveit
v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992). As a layman, the veteran's
assertion of a relationship between his low back disorder and
service cannot constitute competent evidence of such a
relationship. For the foregoing reasons, the Board finds
that the preponderance of the evidence is against the
veteran's claim. Accordingly, service connection for a low
back disorder is not warranted.
As the preponderance of the evidence is against the veteran's
claim, the benefit of the doubt rule is not applicable. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005);
Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER
New and material evidence having been submitted, the claim of
entitlement to service connection for a low back disorder is
reopened.
Service connection for a low back disorder is denied.
New and material evidence having not been submitted, the
claim of entitlement to service connection for bilateral knee
pain is not reopened.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs